Agora 1: Between Law and Politics: How Judges Manage Political Constraints

Chair: Ole Kristian Fauchald (University of Oslo)

This roundtable discussion focuses on judicial responses to the legitimacy crises that a number of international courts and tribunals have experienced, and discusses the ways in which international judges and arbitrators attempt to manage their legitimacy in response to discontent expressed by states and other stakeholders. Starting from theories of judicial behavior and the use of quantitative, qualitative and interpretive methods, this agora considers different ways of measuring the nature and extent of such judicial responses from the contrasting perspectives of law, political science and sociology.

Agora 2: A Less Gendered Bench: What Difference does it Make?

Chair: Cecilia M. Bailliet (University of Oslo)

This agora presents empirical studies which confirm a significant gender imbalance in international courts, affecting both adjudicators and the legal teams appearing before them. A review of judicial selection for the European Court of Human Rights provides a case study in the dynamics of counter-mobilization against gender imbalance. The discussion also considers potential reform processes to improve the vetting of judicial candidates in order to strengthen the legitimacy of international tribunals. The agora seeks to explore whether gender imbalance affects the effectiveness of courts, whether it varies according to the area of law which the tribunal focuses on, and what the potential consequences of pursuing reforms might be.

Speakers:

Nienke Grossman (University of Baltimore), Shattering the Glass Ceiling in International Adjudication

Stephanie Hennette Vauchez (Université Paris Ouest Nanterre La Défense), More Women - but Which Women? The Rule and Politics of Gender Balance at the European Court of Human Rights

Cecily Rose (Leiden University), A Study of Lawyers Appearing before the International Court of Justice, 1999-2012

Agora 3: Arbitration and Other Forms of Dispute Settlement

Chair: August Reinisch (University of Vienna)

This agora brings together such diverse aspects as the question of non- or half- or quasi-participation in arbitration under the UN Convention on the Law of the Sea, the extent of judicial dialogue with regard to the administrative tribunals of international organizations, the potential of arbitration involving tax-payers in hitherto inter-state dispute settlement proceedings under double taxation treaties, and also the possibility to achieve real settlement of disputes by arbitrating transboundary freshwater disputes. While focusing on arbitration as a quasi-judicial dispute settlement technique, all contributions also reflect on the merits of more consensual forms of dispute settlement.

Speakers:

Erik Franckx (Vrije Universiteit Brussel), The People’s Republic of China’s (PRC) Position Paper on the Philippines v. PRC Arbitration: Having Its Cake and Eating It?

Judge Celia Goldman (Administrative Tribunal of the European Stability Mechanism), Legitimacy and Community: a Systems Approach to Understanding the Authority of the International Administrative Tribunals

Agora 4: The Functions of International Courts

Chair: Judge Allan Rosas (Court of Justice of the European Union)

Whilst this agora takes as a point of departure the proliferation of international adjudicatory bodies as well as the increasing use of existing bodies during the last twenty or so years, it rather focuses on the actual role played by such bodies and their varying functions in this regard. Specific topics include the place of the concept of compulsory jurisdiction in Hans Kelsen’s approach to the future of the universal legal system, the move from retrospective remedies to an increased use of injunctions and other prospective remedies awarded by international courts and tribunals, the role of universal human rights treaty bodies, with a particular focus on a tendency towards proceduralisation of human rights violations, and the incremental approach of the European Court of Justice in the development of EU law, based on a quantitative empirical as well as a qualitative analysis. Overall, the agora not only sheds light on the actual functions of international adjudicatory bodies and the diversity which exists in this regard but also attempts to identify the main trends and perspectives and what they may tell us about the future of the international judicial and quasi-judicial system.

Urska Sadl (University of Copenhagen), Incrementalism and Supranational Judicial Authority : Evidence from the Complete Citation Web of the EU Case Law

Geraldo Vidigal (Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law), From Reparation to Regulation: Prospective Remedies and the Shifting Function of International Courts and Tribunals

Jochen von Bernstorff (University of Tübingen), Hans Kelsen on the Role and Function of the International Judge: A theory of Global Judicial Imperialism?

This event will provide early-career scholars and practitioners (defined flexibly as within 10 years of commencing a career in international law) the opportunity to meet with more senior colleagues, to obtain advice and guidance on careers in international law teaching, research and practice. Places are limited and pre-registration for early-career participants is required.

Agora 5: Sociological Aspects of International Adjudication

Chair: Carlos Esposito (Autónoma University of Madrid)

This agora brings together various sociological inquiries into international adjudication, offering methodological, theoretical, and empirical tools for the study of international courts. Is it appropriate to use international judicial proceedings to construct or affect collective memories? What is the role of international courts in the European and global governance of religious and cultural diversity? What are the conceptual and structural consequences of focusing on judicial decisions to define the conversation about international law? How are courts affected by the increasingly automated, non-human dimensions of their work, and what does this phenomenon mean for the judicialization of international law? All these questions take international courts as objects of inquiry, providing a sociological view of these institutions through fundamental discussions on legitimacy, social structure, and agency, which ultimately should shed light on the meaning of international adjudication and its place in the formation and application of international law.

Speakers:

Jessica Almqvist (Autónoma University of Madrid), Global Judicial Governance in Times of Diversity: the Role of the European Judge

Moshe Hirsch (Hebrew University of Jerusalem), International Courts and Collective Memories: A Sociological Perspective

Fleur Johns (University of New South Wales), Automating Judgment, Judging Automation: Human-Nonhuman Alliances in International Law and Policy

Agora 6: Governance of International Courts

Chair: Jan Wouters (Leuven Centre for Global Governance Studies)

This agora deals with critical questions pertaining to the governance of international courts and tribunals. Key concepts are independence, accountability, legitimacy and effectiveness. We start with a comparative look at the functioning of the ‘governance institutions’ of the courts, such as the Assembly of States Parties (ICC), the Committee of Ministers and Parliamentary Assembly of the Council of Europe (ECtHR) or the Meeting of States Parties to the UNCLOS (ITLOS). How do their actions affect the functioning of ‘their’ courts? Second, we focus on the work of international secretariats and registries that deal with arbitration. What influence does this ‘institutional staff’ have on preserving the legitimacy and consistency of arbitral decisions and on selecting or removing arbiters? Do they function as ‘gatekeepers’? Third, how do (former) staff members of international criminal tribunals devise strategies and practices which influence the evolution of courts and of substantive international criminal law? Last but not least, what is the cost of international justice from the viewpoint of parties to international proceedings? To what extent do costs influence the choice between judicial proceedings and arbitration? Is there a correlation between expenses incurred and final outcomes?

Speakers:

Niels Blokker (Leiden University), The Governance of International Courts and Tribunals

Kathleen Claussen (Office of the U.S. Trade Representative), Gatekeepers: The Role of Secretariats in the International Arbitration Regime

Mikkel Jarle Christensen (University of Copenhagen), From Symbolic Surge to Closing Courts: The Professional Agents Behind the Transformation of International Criminal Justice

Agora 7: Comparing Regional Human Rights Courts and Commissions

Chair:Lorna McGregor (University of Essex)

This agora examines international human rights law’s claim to universalism through the prism of the regional human rights courts and commissions. The regional human rights systems are often regarded as a vehicle for the development and implementation of a universal understanding of human rights. However, the regional systems have different political histories and until recently have operated relatively autonomously with the result that they have sometimes produced different interpretations and institutionalisations of the same norms in human rights law. This agora examines universality and regional particularisms through a regional comparativist approach. It uncovers the directionality of trends, reflecting on whether one region is leading the way in universalistic interpretations and the extent to which regional systems interact with one another despite catering for diverse constitutional systems in their respective regions. In exploring these themes, the agora first reflects on the political history of the three regions before exploring what is meant by comparative regional human rights law in greater depth. It then takes a comparative approach to regional human rights law through the themes of access to regional human rights courts and commissions, interpretation, and remedies.

Speakers:

Laurence Burgorgue-Larsen (École de droit de la Sorbonne), The Methods of Interpretation of the three Regional Human Rights Courts

Agora 8: The International Court of Justice

Chair: Attila Tanzi (University of Bologna)

This agora focuses on the impact of the ICJ and its case law on the contemporary international law. The discussion starts with a general and thought-provoking presentation placing the jurisprudential activity of the World Court in relation to the consolidation of secondary rules of international law. This is followed by addressing the judicial strategies of the ICJ in the identification of customary international law. The above general considerations will be tested in relation to a specific body of international law, i.e. human rights. To that end, the contribution of the ICJ, in its procedural and substantive law aspects, to the development and enforcement aspects of international human rights, is critically considered. The agora also addresses the controversial question of whether the principle, or judicial technique, of the margin of appreciation is appropriate for the ICJ. The analysis will consider ICJ case law, with special regard to the recent decision in the Whaling Case.

Speakers:

Jean d’Aspremont (University of Manchester), The ICJ and system-design in international law: architecture or art?

Niels Petersen (University of Münster), The Political Economy of the International Court of Justice: Judicial Strategies to Identify Customary International Law

Dominika Švarc (Office of the Prosecutor, International Criminal Tribunal for the former Yugoslavia), The International Court of Justice as a tool for promotion and protection of human rights

Théodore Christakis (University Grenoble-Alpes), The ‘Margin of Appreciation’ as an ‘Axiom’ of International Law for Judicial Review? Some Thoughts on the Position of the ICJ

Forum 1: International Courts and Tribunals: Effective and Legitimate?

Moderator: Cesare Romano (Loyola Law School)

The increased judicialization of international law and of international relations has sparked criticism on issues related to the effectiveness and legitimacy of international courts and tribunals (ICs). This forum asks whether ICs are legitimate in terms of their composition, access of relevant stakeholders, procedure, efficiency and democratic accountability. Are ICs effective with regards to dispute settlement and problem-solving? Do ICs promote the rule of law? How do ICs ensure national implementation of their decisions?

Speakers:

Chiara Giorgetti (University of Richmond)

Judge Erik Møse (European Court of Human Rights, former Judge and President of the International Criminal Tribunal for Rwanda)

Forum 2: Should We (Still) Worry about Fragmentation?

Moderator: Ruth Mackenzie (University of Westminster)

Much concern has been expressed with regards to the potential dangers of fragmentation due to the multiplication of ICs. This forum revisits issues such as whether the increasing number of ICs is in fact leading to interpretative fragmentation, whether there is a danger of forum shopping and competing jurisdiction between ICs, and whether regional courts undermine the global rule of law.

Forum 3: The Emperors Strike Back: Backlashes against International Courts and Tribunals

Moderator: Eva Brems (Ghent University)

There have been mixed reactions by states to the influx of more powerful ICs, including protests not only against particular judgments but about their function, ambitions and even existence. Is the demise of the Tribunal of the Southern African Development Community an exception or a precedent? What are the repercussions of the backlashes against the European Court of Human Rights and the Inter-American Court of Human Rights? Has the recent reform strengthened or weakened the UN human rights treaty bodies? Is the investment regime doomed? Should states fix or exit ailing courts?

Speakers:

Freya Baetens (Leiden University), Once given, now withdrawn: state denunciation of consent to jurisdiction

David Caron (King’s College London), Backlashes Against What: Untangling the Changes in Foreign Investment Protection Arrangements

James Thuo Gathii (Loyola University Chicago), Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences

Forum 4: Beyond International Courts and Tribunals

Moderator: Oran Young (University of California)

ICs exercise jurisdiction over different areas of international law, yet some matters are still neglected. Many other institutions exercise public authority and contribute to global governance. This forum focuses on formal and informal dispute resolutions, quasi-judicial bodies, Alternative Dispute Resolution, fact finding missions, commissions, special courts, and other alternatives to permanent ICs. This forum will also analyze whether it is better to have more ICs and whether they should cover more issues, areas and sectors.

Agora 9: The Performance of International Criminal Courts

Chair: Marjolein Cupido(VU University Amsterdam)

This agora explores the performance and legitimacy of international criminal justice by discussing its blind spots, with each of the panelists focusing on a specific aspect of legitimacy. One panelist discusses legitimacy by taking on board the critique of the ICC as an instrument of neo-colonial Western imperialism. This perception could be corrected by prosecuting corporate actors from the North who fuel conflict in the South. Another blind spot concerns the role of NGOs and their impact on international criminal justice. The embeddedness of NGOs raises questions as to their simultaneous claim as impartial monitors. Also, there is a dimension of class and situatedness that contrasts NGOs’ claims of being universalist. Another blind spot concerns the role of international courts as instruments of social communication and didactic legality. Discussing expressive theories illuminates the micro-politics of meaning production in international criminal trials. Particularly illuminating is a presentation on the victim/perpetrator divide. This divide is central to the parsimony of international criminal law’s world-view, which posits the trial as punishing evil and redeeming the virtuous. However, the ambiguity of the human experience in times of collective violence is dispelled when we adhere to this divide. Each of the panelists discusses whether and how an informed interdisciplinary and critical dialogue can advance the current debates and thinking on the performance and judicialization of international criminal law.

Agora 10: Reasserting State Leadership: Can Governments Step Back from Judicialization?

Chair: Eric de Brabandere (Leiden University)

This agora aims to analyze the specific features of the judicialization of international trade and investment law through the extensive resort to international courts and tribunals to settle disputes. The interplay between multilateral negotiations and arbitral decision-making in international investment law is evaluated, including an examination of three failed attempts to negotiate multilateral conventions on investment, illustrating the conditions under which stalled negotiations foster judicialization. Further, the agora compares the approaches taken in international trade law (particularly within the WTO) and international investment law to three key elements of good governance - procedural fairness, transparency, and reasonable administration of measures - to demonstrate that decisions from either of these branches of international economic law may provide states and other actors with valuable insights into the conduct required by nebulous good governance obligations. The agora also addresses the link between State limits placed on the mandate and function of dispute settlement bodies and the exercise of such a mandate by these bodies as well as looking at how decisions are made in the light of the political and legal constraints placed by States.

Agora 11: Comparative Judicial Practice

Chair: Caroline Foster (University of Auckland)

This agora addresses the theme of comparative judicial practices. The speakers ‘open up’ the black box of international tribunals and provide an insider’s look at the different practices at different courts; they address the methodological issues raised by the ‘practice turn’ in research on international courts and tribunals; and they discuss how different practices have an impact on judicial outcomes, including the structure of and rhetorical strategies in judicial opinions. They investigate what may underpin or motivate the adoption of differing judicial practices, and how a concern for authority may condition the work of judicial institutions internally. Depending on the court or tribunal, working to sustain institutional authority may involve challenging trade-offs in the development of judicial practices.

Agora 12: The Forest and the Trees: Adjudication of International Environmental Disputes

Chair: Jaye Ellis (McGill University)

It seems trite to say that few environmental disputes are heard on their merits, though the truth of this statement depends on how one defines the category of ‘environmental’ disputes. The impact of adjudication on international environmental law is largely a matter of speculation, though important insights can be gleaned from adjudication of disputes before instances specialised in bodies of law other than environmental. Calls for the creation of specialised tribunals flow from observations about international environmental law: its highly specialised, technical nature, but also the unique legitimation issues presented by environmental protection. However, another feature of international environmental law is its interdependence with other bodies of law, raising questions about the virtues of specialisation. While adjudication clearly has an impact on the shape of legal norms, this impact does not necessarily lie in the direction of progressive development; much will depend on the contours of the dispute and the interests involved. Much will depend as well on the nature of adjudicatory instances – not just their degree of specialisation but also their modes of functioning, for example their openness to participation by non-state actors. Finally, questions regarding the appropriate division of labour between adjudication and law-making are raised.

Speakers:

Alan Boyle (University of Edinburgh), Progressive Development of International Environmental Law: Legislate or Litigate?

Baltic Yearbook of International Law (Lauri Mälksoo), European Journal of International Law (Anny Bremner), Leiden Journal of International Law (Eric Brabandere), Oxford University Press (Emma Thomas), Polish Yearbook of International Law (Lukasz Gruszczynski), Revue belge de droit international (Olivier Corten)

Forum 5: Squaring the Circle? International Courts, Sovereignty and Subsidiarity

Moderator: Makane Moïse Mbengue (University of Geneva)

Ever more ICs decide ever more disputes among and within sovereign states. The principle of subsidiarity is one of several ways to balance the power between national and international courts. This forum addresses such questions as: Is the margin of appreciation in human rights a sign of deference or disintegration? What is the role of subsidiarity in trade and investment? What are the implications of subsidiarity as a general principle of international law?

Current Events: International Law and the Fight against ISIS (live stream)

The fight against ISIS raises multiple questions of International Law. This panel, sponsored by the ESIL Interest Group on Peace and Security, will first focus on some important jus ad bellum issues. It will discuss if the theory of intervention by invitation is a valid and sufficient legal basis for the strikes against ISIS, if the fight against ISIS challenges the alleged prohibition of intervention in civil wars, the issue of self-defence against attacks by non-state actors, the doubts surrounding the use of the ‘unable or unwilling’ doctrine and the role of the UN Security Council. The panel will then try to disentangle the various armed conflicts to which the fight against ISIS has given rise (traditional non-international armed conflict, non-international armed conflict of a transnational character, potentially international armed conflict) and will seek to identify the relevant applicable rules. A special attention will be given to the status of « foreign fighters » under the law of armed conflicts.

Speakers:

Karine Bannelier (University Grenoble-Alpes), External Intervention Against ISIS and the Legal Basis of ConsentOlivier Corten (Université libre de Bruxelles), The 'Unable or Unwilling' Theory; Has it Been, and Could it Be, Accepted?Vaios Koutroulis (Université libre de Bruxelles), The Fight Against ISIS and Jus in Bello Issues

Current Events: The Accession of the European Union to the European Convention on Human Rights

Moderator: Mattias Kumm (New York University)

Accession of the European Union to the European Convention on Human Rights (ECHR) has been discussed for decades. Following the entry into force of the Lisbon Treaty in 2009, accession to the ECHR even became a legal obligation. When, after several years of negotiations, agreement between the EU and the 47 state parties to the ECHR was finally struck in late 2013, it seemed as if the obligation would be fulfilled. However, on 18 December 2014 the Court of Justice of the European Union delivered Opinion 2/13, declaring that the Draft Agreement on the Accession of the EU to the ECHR was incompatible with the constituent treaties of the Union. This forum will dissect Opinion 2/13, examining its impact on the accession process, and attempt to identify the possible ways forward.

Current Events: The Situation in Ukraine (live stream)

This forum will consist of an interactive discussion on various aspects of the ongoing Ukraine crisis, ranging from the use of force, collective non-recognition of territorial changes in violation of international law, state responsibility for the conduct of non-state actors, and the applicability of human rights law extraterritorially and in armed conflict. It will also look at the pending or future litigation of (some of) these questions before the European Court of Human Rights, including inter-state cases between Russia and Ukraine, as well as possible cases regarding the downing of Malaysian Airlines flight MH17.